The Supreme Court could soon decide on a major abortion case for the first time in over 20 years

Protesters
demonstrating in front of the US Supreme Court on March 2 as the
court took up a major abortion case focusing on whether a Texas
law that imposes strict regulations on abortion doctors and
clinic buildings interferes with the constitutional right of a
woman to end her pregnancy.Reuters/Kevin Lamarque

In the next few days, the Supreme Court will most likely make a
decision on Whole Woman’s Health v.
Hellerstedt, the first
major abortion case to reach the court in over two decades — but
a definitive ruling is far from certain.

This is because the court is
lacking a ninth justice, opening the potential for a tie. Justice
Antonin Scalia died in February, and Republicans in Congress have
declined to consider Obama’s proposed replacement, Merrick
Garland. If there is a tie — a serious possibility — the court's
ruling would not create any lasting precedent for the
controversial issue.

Whole Woman’s Health v.
Hellerstedt deals with House Bill 2, or HB2, a Texas law
requiring abortion clinics to meet the standards of "ambulatory
surgical centers," or hospital facilities that can accommodate
low-risk surgery. Abortion doctors also must have admitting
privileges to a hospital within 30 miles of their clinic.

The law,
which its creators say protects the safety of women seeking
abortions, has caused the
majority of Texas’ abortion clinics to close. One Texas
clinic, Whole Woman's Health, is fighting the ruling of the Fifth
US Circuit Court of Appeals in New Orleans, which upheld the law.

Whole Woman's Health claims that the law's restrictions create an
"undue burden" on women seeking abortions — a standard
established in the 1992 case Planned Parenthood v.
Casey. If the court decides that the restrictions do
constitute an undue burden, the law will not stand.

Kent Greenfield, a law professor
at Boston College Law School, outlined three possible options for
the case's outcome:

The justices rule 5 to 3 in
favor of Whole Woman's Health, and the law is struck down.
Although HB2 is specific to Texas, other courts would begin
using the Supreme Court's ruling to decide similar cases of
their own.

The justices tie 4-4. The ruling of the Fifth Circuit would
stand, and HB2 would be upheld — but no lasting precedent would
be set.

The justices remand the case to the Fifth Circuit. In this
case, a remand means the lower court's ruling does not stand, and
the facts of the case would have to be further developed.

"My sense of that case is that
it's unlikely to announce any huge rules of law," Greenfield
said. "My guess is that either it's going to announce that these
restrictions are undue burden, holding in favor of women seeking
abortions ... or there's some kind of middle-ground compromise
that will be laid down."

If there is a tie or if the case
is remanded, Greenfield said, it could return to the Supreme
Court later, when there are nine justices.

Greenfield also noted that
Justice Anthony Kennedy, the swing vote,had reservationsduring oral arguments in March
about whether the case should be sent back to the lower court for
more fact-finding before the Supreme Court makes a
decision.

In particular, Kennedy wondered
whether the restrictions placed on abortions involving pills
would lead to an increase in surgical abortions — a result he
said "might
not be medically wise."

"There are a few factual
uncertainties in the case," Greenfield said. "My prediction is
that they will reverse and remand."